Shall, Will, May, or Must?

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By Deborah Hopkins, January 17, 2018

It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document:

A. Shall

B. Will

C. May

D. Must

The answer? D.

The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. The interpretation of everything else is up for debate.

Don’t believe me? You don’t have to take my word for it. Just about every jurisdiction in this great country has held that the word shall, while the most often used of the above, is also the most confusing because it can mean may, will, or must. Our very own U.S. Supreme Court has interpreted the word to mean may. In fact, it’s so confusing that the Federal Rules of Civil Procedure no longer use the word at all.

We quote Bryan Garner, one of our favorite authors, quite a lot during our legal writing classes because the guy just gets it; he understands what it means to beat your head against a wall trying to get a legal document just right, and understands that sometimes one word can alter the meaning of an entire sentence, paragraph, or document. On the topic of today’s article, he says, “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.” Hahaha. Nothing like lawyers to make black and white seem like all the shades of gray. Isn’t this a fun business we’re in?

To be fair, it’s not really our fault that this confusion exists. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. Props to the FAA, though, as it was the first agency to bring this topic to our attention.

So, realizing that words that sound alike may have very different meanings, let’s look at an example from a hypothetical EEO settlement agreement:

A. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint.

B. The agency will return the complainant to her previous position as a GS-4 File Clerk and the complainant will withdraw her complaint.

C. The agency may return the complainant to her previous position as a GS-4 File Clerk and the complainant may withdraw her complaint.

D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint.

Yep, I’m going with D. Remember, when you want something to be mandatory – like a settlement agreement that requires both sides to do something – use the word must instead of shall, and you’ll have a document that carries with it a firm legal obligation. For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3).

And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10).

And now, I must go. Hopkins@FELTG.com

The Dangers of Charging Intent

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By Deborah Hopkins, January 17, 2018

One of the more interesting – and precarious – challenges that attorneys, HR practitioners, and supervisors in our business come across in misconduct cases is a word that you probably remember from way back in your Criminal Law class, if you went to law school: intent. Proving intent can be difficult, and while in the criminal world lesser-included offenses automatically apply (for example, if you can’t prove Murder 1, Murder 2 is a lesser-included offense that rides along with the Murder 1 charge), in the business of federal employment law, failing to prove intent might just cause you to lose your entire case – even if you have incontrovertible video evidence and 100 witnesses who can swear that the employee engaged in misconduct.

In our business, labeled charges (for example, falsification; theft) come with an element of intent, and the intent has to be proven by a preponderance of the evidence. So, how does one prove intent? Well, unless we have an appellant who admits they intended to tell a lie or to permanently deprive someone of something, intent is proven by considering the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 2014 MSPB 86.

When it comes to intent charges, we have a few common categories that are worth exploring. Today we’ll cover deceit/falsification and insubordination. In the next newsletter we’ll tackle threat and willful misconduct.

Deceit/Falsification

In order to prove Falsification, the agency must prove that the information given by employee is:
1. Either
– False,
– Misleading, or
– Incomplete,
2. Given with the intent to deceive, and
3. For private material gain
Boo, supra.

All of these elements are required, so just because an agency can show that an appellant has provided incorrect information, this proof in itself does not control the question of intent for purposes of adjudicating a falsification charge. Reid v. Navy, 118 MSPR 396 (2012) (intent may be negated if there is evidence the appellant does not believe he has done anything wrong). Because we’re talking about circumstantial evidence, intent may also be inferred when the misrepresentation is made with a reckless disregard for the truth, or with conscious purpose to prevent the agency from learning the truth. Crump v. VA, 114 MSPR 224, ¶ 6 (2010).

One of the common ways agencies lose the intent argument is when an employee makes a good-faith explanation for the behavior that seems deceitful, and the agency still decides to charge the employee with falsification. A reasonable good-faith belief in the truth of a statement precludes a finding that an employee acted with deceptive intent. See, e.g., Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008) (appellant who requested mileage reimbursement to which he was not entitled had a reasonable good faith belief that he could seek reimbursement, therefore he could not have been reckless with regard to the truth because of that reasonable good faith belief).

The absence of a credible explanation for the incorrect information can constitute circumstantial evidence of intent to deceive. Crump, supra (the totality of the circumstances and lack of plausible explanation showed the appellant falsified his educational background, a medical record, and information related to a military leave request with the intent to deceive or mislead).

If your intent to deceive evidence is shaky, consider charging lack of candor, which is a more flexible charge that need not require proof of intent to deceive. See, e.g., Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002). And always remember, you can pump up the penalty by putting intent in the Douglas analysis; if you lose it down there, your case isn’t necessarily dead.

Insubordination

Insubordination is “The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed.” Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989), which is a distinct charge from failure to follow a policy, Brown v. Air Force, 95 FMSR 5182 (1995).

Here are examples of a few cases where agencies were able to prove the intent element in insubordination charges:

• Refusal to comply with a supervisor’s order to go home, Ziegler v. Treasury, DC-0752-11-0645-I-1 (2013)(NP).

• Disobedience of an order to be vaccinated against anthrax, Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002).

• Refusal to answer a supervisor’s questions in connection with a work assignment, Shaw v. Air Force, 98 FMSR 5373 (1998).

• Refusal to submit to drug testing, Watson v. Transportation, 91 FMSR 5447 (1991).

And here are a few that agencies lost:

• A brief delay in providing information sought in connection with an investigation, Milner v. Justice, 97 FMSR 5455 (1997).

• Refusal to comply with an order that would have placed the employee in imminent danger of serious injury, Washington v. VA, 91 FMSR 5486 (1991).

• A sincere but unsuccessful attempt to comply with an order, Forgett v. Army, 90 FMSR 5329 (1990).

• Failure to comply with an order or direction that is not sufficiently clear, Drummer v. GSA, 84 FMSR 5706 (1984).

If you’re having trouble on the intent evidence in these cases where you want to charge insubordination, consider instead charging something like failure to follow orders, which does not require willful refusal to obey an order but just requires proof the employee did not do what he was told to do. See Hamilton v. USPS, 71 MSPR 547 (1996).

The bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t, you lose the whole thing. Hopkins@FELTG.com

It’s Called Sexual MISCONDUCT for a Reason

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By Deborah Hopkins, December 13, 2017

You probably saw last week that Time Magazine’s 2017 Person of the Year is not a person at all, but rather is a group of people: “The Silence Breakers,” the women who came forward under #MeToo as victims of sexual harassment and assault.

This #MeToo movement continues to reveal more details of sexual misconduct in the workplace, and more horrifying details of sexual misconduct – from the highest levels – are coming out. It may seem like “guilty until proven innocent” is the trend in Hollywood (think Matt Lauer; Kevin Spacey; Harvey Weinstein), but keep in mind that there’s a lot we don’t know about why those ramifications hit so quickly. There could have been admissions, confessions, or agreements to resign.

What we do know is that because of these front-page stories, there is now a heightened awareness and sensitivity to sexual harassment and related inappropriate conduct in the federal government. Sexual misconduct among federal employees is not anything new, but because it’s a topic on everyone’s minds, it’s worth a deeper look today.

First of all, sexual harassment is a term of art and while it’s easy to allege, it’s actually not that easy to prove. There are elements to a sexual harassment claim, and the complaining employee must prove them all in order to prevail. So, there is a LOT of inappropriate conduct that does not rise to the level of Title VII sexual harassment but is still inappropriate in the workplace.

What does this mean for you, at your agency? It means you should not wait to discipline an employee who engages in inappropriate sexual conduct until a complaint of sexual harassment is filed or proven. The EEO complaint process takes so long, you could have a predator roaming the halls of your agency for years before there’s ever a finding. So do not delay.

A lesson we learned from the Postal Service 30 years ago is that an agency can remove an employee for inappropriate sexual conduct, even if the conduct does not rise to the level of Title VII harassment. It bolsters the agency’s case for removal if the employee’s conduct affects other agency employees, and if the agency has a legitimate concern about incurring potential Title VII liability if it fails to take appropriate action to correct the employee’s behavior. See Carosella v. USPS, 816 F.2d 638 (Fed. Cir. 1987). Part of an agency’s obligation in these cases is to promptly investigate and STOP harassment from occurring, so acting quickly is the best way to protect employees from harm – and to protect your agency from liability.

So, what kinds of cases warrant removal as an appropriate penalty? Let’s look at a few.

Supervisor Misconduct

Supervisors are held to a higher standard than co-workers, so if the perpetrator is a supervisor we know that removal can be warranted, especially when there are multiple charges of inappropriate sexual behavior toward subordinates. Last year the MSPB affirmed a supervisor’s removal for Unacceptable Conduct where the supervisor made inappropriate comments with sexual undertones to several subordinates, including telling an employee that he was willing to help her cheat on her husband, and telling a different employee that she could take the day off if she was willing to act “a little unprofessional.“ Oliveros-Ballon v. USPS, SF-0752-15-0615-I-1 (April 15, 2016)(NP).

In another recent case, a supervisor’s removal was affirmed after she made comments of a sex-based nature and touched an employee on the buttocks on multiple occasions. That’s right, female supervisors engage in this type of behavior as well, and are disciplined accordingly. Reid v. Air Force, CH-0752-14-0849-I-1 (April 5, 2016) (NP).

Over at the VA, a supervisor’s removal was affirmed after he was charged with 20 counts of inappropriate and intimidating sexual comments, sexual conduct, and changes to working conditions, of his female employees. Alberto v. VA, 98 MSPR 50 (2004).

There are hundreds, if not thousands, of cases that follow this same line of outcome, but hopefully by now you get the idea. Sexual misconduct – regardless of what you decide to call the charge – is nothing new and agencies have been successfully removing supervisors for decades over inappropriate sexual language and conduct in the workplace.

Coworker Misconduct

In the case of a non-supervisor, though, removal is often still an appropriate penalty. Earlier this year, the Federal Circuit upheld a removal for Unacceptable Conduct where the appellant made 10 vulgar sexual comments to female customers and coworkers. Canarios v. USPS, No. 2017-1935 (Fed. Cir. 2017) (NP). In another recent case, an MSPB AJ upheld a Conduct Unbecoming removal when an appellant made sexual comments and gestures at three coworkers and did not stop after they objected to his conduct. Adkins v. DOD, SF-0752-16-0294-I-1 (December 12, 2016) (NP).

A Treasury employee’s removal was upheld by the MSPB because he continued to talk to a coworker in sexually offensive and derogatory terms, after being explicitly told by management not to do so. Lentine v. Treasury, 94 MSPR 676 (2003). [Editor’s Note:  This is critical and sometimes, this is hard. Before we can discipline, the employee has to be on notice of the prohibited misconduct. Some conduct obviously violates accepted norms of behavior and can be disciplined even if we did not tell the employee not to do it; e.g., non-consensual sexual touching. On the other hand, some conduct is not so obviously inappropriate; e.g., touching someone’s shoulder. The manner and context of conduct often determines whether the employee should have known not to do it; e.g., was the shoulder touch an “Atta boy/girl” congratulation or was it a “Hey, baby. You got some nice sexy shoulders there.” The good news is that a supervisor can establish rules that clarify any gray areas; e.g., “No touching. Anywhere. Any time.”]

This is serious stuff that requires appropriate action.

If you’re dealing with a potential sexual misconduct charge, you’ll want to pay special attention to these mitigating or aggravating factors in penalty selection for sexual harassment cases:

  1. Physical contact
  2. Frequency or severity of the conduct,
  3. Supervisory status,
  4. Clarity with which employee is on notice of rules prohibiting sexual harassment and improper conduct, and
  5. The employee’s potential for rehabilitation.

See, e.g., Reid, supra.

Is there a correct way to handle in these cases? Yes. The answer is to take prompt, effective corrective action so that these behaviors do not continue. Look to the cases for guidance. And hey, while it seemed for a while that Congress was above it all, we’re finally starting to see that in sexual misconduct is a serious offense, and it deserves consequences, no matter who you are. Hopkins@FELTG.com

How Much Workplace Violence Do I Have to Put Up With?

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By Deborah Hopkins, November 15, 2017

Here’s a note a reader recently sent:

Dear FELTG,

I work in a federal agency but NOT in a federal building. We don’t have metal detectors – just a security person at a reception desk, who is sometimes there and sometimes not. I have never been bothered by working in a non-secure building until recent events in the media – most recently, a few days ago when a man shot and killed three coworkers, and injured two other, outside Baltimore. While we don’t know much yet about the shooter, I have to wonder if he had violent tendencies and whether this could have been stopped before it happened.

This leads me to my questions:

  1. Can a federal agency fire someone who shows violent tendencies in the workplace?
  2. If so, what should the charge be, and how much proof do we need?

Thanks for your help.

And here’s the FELTG response:

Thanks for your note. I’m sure you’ve heard us talk or write about the sad fact that over 400 people die at work every year at the hands of a co-worker. It’s a tough reality. Regarding your questions, let’s take them in order:

  1. Yes. If the employee has engaged in misconduct – broken a rule – you can propose removal if, in doing the Douglas analysis, you determine that the misconduct warrants removal. (If you’re at the VA, a new law means you don’t even have to do Douglas.)
  2. As far as proof, you’ll need a preponderance of the evidence – that it’s more likely than not – that the individual did whatever you charged him or her with. The charge you use will depend on the facts of the case. Is the individual assaulting people, threatening people, or destroying property? You want to make sure to select a charge that you can prove. (If you’re at the VA, you only need to prove the misconduct by substantial evidence.)

Here are a few case examples where removal for threatening or aggressive-type behavior was appropriate:

Charge: Unacceptable Conduct

A letter carrier’s removal was upheld after he used profanity toward a co-worker and punched the co-worker in the head. Davis v. USPS, 487 F. App’x 571 (Fed. Cir. 2012) (NP).

Charges: 1) Violation of the Code of Professional Responsibility; 2) Off-Duty Misconduct; 3) Unnecessary Display of a Weapon

A U.S. Deputy Marshal’s removal was upheld for an off-duty altercation. The Marshal had stopped his car in the middle of the street and was arguing with his girlfriend, and when two people he did not know told him to move his car so they could drive past, the Marshal “slapped” the driver’s car, and then pulled out his firearm and pointed it above the driver’s head. Rodriguez v. DOJ, NY-0752-10-0081-I-1 (2011) (NP)

Charges: 1) Creating a Disturbance, and 2) Insubordination

Removal was upheld where the appellant, a Legal Administrative Assistant, refused to comply with an agency police officer’s orders, started “flailing” his elbows, and injured two officers who were attempting to take him into custody. Sousa v. Army, 108 F.3d 1391 (February 11, 1997)

Charge: Threatening a Coworker with a Knife

Removal was upheld for an Army weapons explosives operator, who flipped out the blade of his pocket knife and told a coworker he would cut the buttons off her overalls. Despite his defense that he was joking, the coworker testified she felt threatened, and witnesses concurred. McGuire v. Army, 333 F. App’x 528 (Fed. Cir. 2009) (unpublished)

If an agency’s charge includes the word “threat,” it is wise to be sure a threat has actually been made. The MSPB looks to the Metz factors in analyzing charges of threat: 1) the listener’s reactions; 2) the listener’s apprehension of harm; 3) the speaker’s intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986)

If any of the Metz factors are shaky, it’s probably best to frame the charge differently. Remember, too, if there’s an emergency situation, you can – and should – call 911.

If you need to know more about this all-too-important topic, join us for the 2018 webinar series Behavioral Health Issues in the Federal Workplace, or join us for the brand-new two-day program Handling Behavioral Health Issues and Threats of Violence in the Federal Workplace March 6-7 in Honolulu. Hopkins@FELTG.com

Do I Have to Pay My Disabled Employee’s Wife to Assist Him at Work?

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By Deborah Hopkins, October 18, 2017

The answer to this article’s title: maybe.

Earlier this year, EEOC amended the regulations on federal agency obligations to provide Personal Assistance Services (PAS) to employees who have targeted disabilities. (If you need a refresher on what a targeted disability is, check out this recent FELTG article). The amendments apply to Section 501 of the Rehabilitation Act of 1973, the law that prohibits the federal government from discriminating in employment on the basis of disability and requires it to engage in affirmative action for people with disabilities.

Some individuals with targeted disabilities cannot work unless PAS are provided to them in the workplace, so beginning January 3, 2018, federal agencies will be required by 29 CFR § 1614.203(d)(5) to provide PAS to individuals who need it. PAS are provided by humans, and help individuals who, because of their targeted disabilities, require assistance to perform basic activities of daily living, such as eating, walking, or getting out of a vehicle.

According to the regulations, PAS means “assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.” Keep in mind these are examples and the regulations do not list every activity that might constitute a need for PAS. For example, someone providing PAS might push a wheelchair or assist someone with getting into or out of their desk chair at work.

PAS provide functional assistance, not medical assistance. PAS do not include performing medical procedures (such as injecting insulin) or medical monitoring (such as monitoring heart rate, body temperature or blood sugar).

Here are some examples of Personal Assistances Services federal employees might need:

  • Pushing a wheelchair
  • Getting out of their vehicle when they get to work
  • Using the restroom
  • Walking across uneven surfaces
  • Assistance with prosthesis
  • Eating or drinking during a break
  • Reaching and retrieving items

As stated above, PAS allow individuals to perform activities of daily living that an individual would typically perform if he or she did not have a disability – but they do NOT perform the essential functions of the job FOR the individual. EEOC’s website gives an example: “PAS do not help individuals with disabilities perform their specific job functions, such as reviewing documents or answering questions that come through a call-in center. PAS differ from services that help an individual to perform job-related tasks, such as sign language interpreters who enable individuals who are deaf to communicate with coworkers, and readers who enable individuals who are blind or have learning disabilities to read printed text. Those services are required as reasonable accommodations, if the individual needs them because of a disability and providing them does not impose undue hardship on the agency. An agency’s obligation to provide reasonable accommodations is unaffected by the new regulations.”

Agencies are required to provide PAS to an individual if:

  1. The individual is an employee of the agency;
  2. The individual has a targeted disability;
  3. The individual requires the services because of his or her targeted disability;
  4. The individual will be able to perform the essential functions of the job, without posing a direct threat to safety, once PAS and any required reasonable accommodations have been provided; and
  5. Providing PAS will not impose undue hardship on the agency.

In addition to being available regularly scheduled work hours, PAS must be supplied during overtime hours and work-sponsored events such as special talks and holiday parties, as these are “benefits and privileges of employment,” PAS must also be provided to teleworkers who qualify.

PAS employees may be federal employees, independent contractors, or a combination of employees and contractors. While the agency has the final say on who provides PAS to the employee, the employee’s choice should be given deference whenever possible. This means if the employee’s spouse provides PAS when he is not in the workplace, and the employee needs assistance when in the workplace, the agency may employ his wife (as either an employee or contractor) as the PAS provider if the employee requests her. If the agency denies a request for a specific PAS, the agency must show providing it would be an undue hardship under the disability standard.
For more information see EEOC’s Questions and Answers: Federal Agencies’ Obligation to Provide Personal Assistance Services (PAS) under Section 501 of the Rehabilitation Act at https://www1.eeoc.gov//federal/directives/personal-assistance-services.cfm?renderforprint=1.

Hopkins@FELTG.com

A Classic Reprisal Case

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By Deborah Hopkins, October 18, 2017

EEO activity isn’t fun for anyone involved – not for the complainant, not for the agency reps, and not for the supervisor named as a responding management official. But EEO laws exist to protect people from illegal reprisal for engaging in protected EEO activity, and a recent reprisal case from USGS shows us exactly what not to do.

The employee, a hydrologist for the U.S. Geological Survey, filed an EEO complaint based on age (51), sex (male), hostile work environment, and reprisal. The employee’s claims were:

  1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
  2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
  3. On September 10, 2013, his first level supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
  4. On August 20, 2013, the selecting official told him that the supervisory position was the Selectee’s position;
  5. On August 20, 2013, his first level supervisor instructed him not to apply for the Supervisory Hydrologist position in Rolla, Missouri;
  6. On an unspecified date in October 2010, he did not receive his promotion after being told that he had the director’s approval for the promotion, pending a letter of reference;
  7. On an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
  8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
  9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.

As is common in EEO cases filed, the complainant’s claims on age, race and harassment were found to have no merit, but the EEOC did find evidence of reprisal for prior EEO activity:

  • The supervisor offered the employee an incentive to withdraw his complaint, and told him that if management changed and the employee had a good performance evaluation, he would talk with senior management about a new job for the complainant.
  • The supervisor told the complainant he thought he had “pulled the trigger too soon” by contacting the EEO counselor.
  • The supervisor also told the complainant that the EEO process is not “the most enjoyable path for anyone involved.”

The EEOC found that the supervisor “engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity. We further find that [the Supervisor’s] comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by [the Supervisor] were clearly in violation of the anti-retaliation provisions of our regulations.”

As part of the order, EEOC required the USGS to provide “at least eight hours of in-person EEO training to [the Supervisor] regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.” Octavio C. v. USGS, EEOC Appeal No. 0120150460 (August 16, 2017).

We try to get the word out to your supervisors that while EEO is not fun for anyone involved, making these types of statements is going to be reprisal, every single time. If you need to know more on this topic, Bill and I are holding a webinar called 50 Shades of Reprisal: The Differences between Whistleblower, EEO, Union & Veteran Reprisal on October 26.  Hopkins@FELTG.com

Do Supervisors Have Any Appeal Rights?

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By Deborah Hopkins, September 13, 2017

A couple of weeks ago, I was teaching a class to supervisors on holding employees accountable for performance and conduct. The day after the training ended, I received the following email from an attendee.

Thanks for the excellent presentation on holding employees accountable.  My concern is with the new changes that might be coming from Congress — it seems that there will be little to NO protection for Supervisors, regardless of tenure with the government.

What recourse does a supervisor have IF given a letter of Reprimand, and where can I find information as to the rights of a Supervisor within the Federal government, when I have no union for protection?

And here’s the quite-brief response to that question.

Dear FELTG attendee,

Thanks for the email. Though you’re not in a union, you do have a couple of options if you’d like to challenge the reprimand:

  1. You can file an internal administrative grievance with the agency. This is different from a union grievance in that the internal grievance generally goes to a higher-level official in the agency, instead of to an arbitrator, and of course you don’t have a union to represent you. I haven’t read your internal grievance policy so I don’t know the specific person you file with, but I imagine HR will be helpful in providing you with that info.
  2. You could contact an EEO counselor if you think the reprimand was motivated by your EEO category (age, sex, religion, etc.).
  3. You could contact the US Office of Special Counsel if you meet the definition of a whistleblower.
  4. If you are a veteran and feel you have been mistreated because of your military service, the Department of Labor (or OSC sometimes) can help you out.

And that’s about it. Please let me know if you have any questions at all. Take care. Hopkins@FELTG.com

The Supervisor who Threatened to “Skull F*ck” His Employees

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By Deborah Hopkins, August 16, 2017

Lately, FELTG has begun offering classes on dealing with threats of violence in the federal workplace. It seems that there’s a workplace shooting just about every day, and if you can believe it, government workplaces (including state and local) experience about twice the amount of workplace violence as do private sector employment facilities.

Violence should be taken seriously and in my humble opinion, violence in the workplace is usually a first-strike-and-you’re-out offense. Even threats of violence should be taken seriously. It’s just not worth it to gamble with people’s lives.  Aaron Alexis, the contractor who committed the Navy Yard mass shooting in 2013, had a history of violent behavior in the Navy – violent behavior that went uncharged and therefore was under the radar when he applied for his contractor job.

Here are some recent cases where agencies removed employees for violent behavior, and the removals were upheld.

Removal for conduct unbecoming a supervisor was upheld when evidence showed the supervisor threatened multiple employees with the comment, “I’ll skull f*ck you.” Hamel v. DHS, DE-0752-15-0039-I-2 (July 31, 2017).

Removal for conduct prejudicial to the best interests of the service was upheld where evidence showed that an employee: 1) Upset that her leave request was denied, pulled a gun from her car and showed it to the supervisor who had denied the request, and 2) Stood at the door to her supervisor’s office, pointed her finger at him and made a noise as if she were firing a gun. Hicks v. USDA, AT-0752-16-0105-I-1 (September 16, 2016) (NP).

Removal for patient abuse was upheld where the employee, a certified nursing assistant, slapped a patient in the face after he bit her finger. Mitchell v. VA, DC-0752-15-0645-I-1 (May 27, 2016) (NP)

Removal was upheld where the appellant, upset about unresolved leave and pay issues, wrote a letter to her Congressman complaining about the agency and asking “Must more blood [ ] be shed before changes occur?” The appellant also asked a high-level supervisor if she recalled the shootings at Camp Lejeune and Fort Hood and then told her that her first- and second-level supervisors should be careful and should leave [the appellant] alone. Jolly v. Army, AT-0752-15-0013-I-1 (April 15, 2016) (NP).

Violent behavior also creates potential EEO issues. A supervisor’s failure to take prompt and effective corrective action, when a coworker made racially discriminatory threats of violence against the complainant, created agency EEO liability amounting to $125,000, and created severe health problems for the complainant: anxiety, difficulty concentrating, a loss of appetite, high blood pressure, severe headaches, relationship problems, loss of motivation to work, insomnia, weight gain, and paranoia that the coworker would physically harm his family. Vaughn C. v. USAF, EEOC Appeal No. 0120151396 (April 15, 2016).

I have a bunch more, but you get the idea. There’s just no place for people like this in the federal civil service.

In case you’re interested in learning more, FELTG is offering a webinar on the topic: Handling Violence and Threats of Violence in the Federal Workplace on September 7. You really can’t afford to miss this one. Hopkins@FELTG.com

The EEO Supervisor Who Never Heard of a Targeted Disability

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By Deborah Hopkins, July 19, 2017

A few weeks ago, I was talking shop with a colleague, and he mentioned that he’d recently run into an agency EEO supervisor who had never heard the term targeted disability.

“C’mon,” I said, “There’s no way that’s right.”

“Right or wrong, it’s the truth,” replied my colleague.

“Okay,” I said, “Maybe she is at least familiar with the term predictable assessment?”

“Nope,” my colleague said, “Not that either.”

“Ok, how about Schedule A?”

“Negative.”

Holy moly. If an EEO supervisor doesn’t know this stuff, then how many of our readers might not know it either? I think it’s time for a “read and learn” session.

Targeted disabilities are the most severe types of disabilities, and they include:

  • Blindness
  • Deafness
  • Partial and full paralysis
  • Missing extremities
  • Dwarfism
  • Epilepsy
  • Intellectual disabilities
  • Psychiatric disabilities

Individuals with these disabilities typically have the greatest difficulty finding employment, so the federal government places a special emphasis on recruiting, hiring, promoting and retaining people with targeted disabilities.

The related term predictable assessment comes out of 29 CFR § 1630.2(j)(3): the “inherent nature” of certain impairments will “virtually always be found to be a substantial limitation.” Thus, these conditions always rise to the level of disability under the ADA.

Section 501 of the Rehabilitation Act of 1973 charges federal agencies to promote the hiring and retention of individuals with disabilities in two ways:

  1. To be a model employer of individuals with disabilities through use of meaningful affirmative hiring, placement, and advancement opportunities; and
  2. To ensure employment non-discrimination and reasonable accommodation.

Schedule A hiring authority allows agencies to provide job opportunities to individuals with targeted disabilities by appointing qualified individuals to federal jobs non-competitively, thus eliminating the need to post a job opening or certify a certain number of candidates for an open position. Schedule A also allows for hiring readers, interpreters, and personal assistants for employees with severe disabilities as reasonable accommodations.

From a practical perspective, this means that if a candidate with a targeted disability appears to be qualified for a funded vacancy, and the supervisor wishes to hire this individual, the agency does not need to issue a job announcement. But, Schedule A applications can be accepted after the job announcement closes, up until the position is actually offered to someone.

Earlier this year, the EEOC released a final rule, “Affirmative Action for Individuals with Disabilities in Federal Employment.” Beginning in 2018, agencies will be required to incorporate affirmative action into hiring and advancement plans: 12 percent of employees should be people who have disabilities, and 2 percent of employees should have targeted disabilities. Agencies will be required to report their statistics to the EEOC, and will furnish copies of their hiring/promotion plans to EEOC for approval.

This is an important topic that some people seem to have missed. There’s a lot more that goes into Schedule A hiring, and FELTG is holding a webinar on this topic July 20 (that’s tomorrow!), so if you’re interested there’s still time to register. Hopkins@FELTG.com

Good News, Y’all: Sometimes Telework is NOT a Reasonable Accommodation

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By Deborah Hopkins, June 14, 2017

Out of all the training classes we present here at FELTG, maybe the biggest area where we get questions, comments, complaints, and yes even tears of frustration, is the discussion of telework as a reasonable accommodation for disability. Telework is often an effective accommodation to allow someone to perform the essential functions of her job; it’s just fabulous when it works.  Sometimes, though, telework is not a good option, yet agencies are afraid to say “no” to someone who brings in a doctor’s note that says “Employee X needs to telework because of a medical condition” because they fear getting in trouble if they deny the request or ask for more information.

Does this sound familiar? If so, then it’s time to rejoice, because I have a few points to share that will help you legally deny telework as accommodation:

  1. When the employee does not have a medically-documented disability. If an employee claims to have a disability and requests telework as accommodation, that employee must provide medical documentation that says they have a physical or mental impairment that affects their ability to perform an essential function of the job. The employee must also explain to the agency how the accommodation (in this case, telework) would allow him to perform that essential function from home. If the person does not provide medical documentation, then you do NOT have to grant him telework because he is NOT qualified. In other words, if he refuses to provide specific medical documentation (diagnosis, prognosis, functional limitations), then he waives his entitlement to the reasonable accommodation process. See Complainant v. DLA, EEOC Appeal No. 0120114081 (2013) (employee’s medical documentation was vague and did not describe the limitations on her essential functions, so the agency was not obligated to accommodate her request). No documentation, no disability. No disability, no accommodation.
  2. When telework is not an effective accommodation. Some jobs can’t be done from home because the essential functions require the person to be onsite. In those cases, telework is not an effective accommodation and should not be granted. See Humphries v. Navy, EEOC Appeal No. 0120113552 (2013) (telework was not an effective accommodation because face-to-face interaction with clients was an essential function of the employee’s job); Gemmill v. FAA, EEOC Appeal No. 0120072201 (2009) (telework was not an effective accommodation because the employee needed to access computer systems and confidential documents that were kept securely at the agency facility). If an essential function of the job requires the employee to be at work to do something, and the employee can’t be at work to do the thing, and no accommodation at work will allow the employee to do the thing, the employee is not a qualified individual.
  3. When an employee has a performance problem. Some employees just can’t be successful while teleworking. If an employee is having performance problems in the workplace with direct supervision, you can easily see how granting telework, where the employee does not have direct supervision, might make that performance issue even worse. See Yeargins v. HUD, EEOC Petition No. 0320100021 (2010) (agency properly denied telework as accommodation because the employee, an EEO specialist, lacked sufficient knowledge of civil rights laws to work independently). EEOC has also upheld agency denials of telework as accommodation because of past performance issues that occurred while the employee was teleworking. See Robinson v. DOE, 586 F.3d 683 (9th Cir. 2009) (agency properly denied telework as accommodation after the employee demonstrated an inability to satisfactorily perform her job while teleworking; in 477 hours of telework the employee only completed a half-page document work product).
  4. When another accommodation is effective. More good news: the agency, and not the employee, gets to choose the accommodation, as long as it is effective. See, e.g., Don S. v. BOP, EEOC Appeal No. 0120141175 (2016). Sure, a lot of employees request telework as accommodation, but if the employee can perform the essential functions of the job with an accommodation in the workplace, the agency has fulfilled its obligation and is not required to grant telework. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014) (though the employee requested telework, the agency effectively accommodated her disabilities at work by providing her with a wheelchair, a special parking spot, and a change in minor job duties she could perform within her medical restrictions); Dennis v. Department of Education, EEOC Appeal No. 0120090193 (2010) (an enclosed work area was reasonable accommodation for an employee with perfume allergies); Gilbertz v. CDC, EEOC Appeal No. 0120110026 (2012) (providing the employee with a quieter work area was an effective accommodation for the employee’s hearing problem).

Now that you know there are times you can deny telework as accommodation, we warn you not to go too overboard with your Telework Denied stamp. There are few things to keep in mind:

  1. Telework does not have to be all or nothing. In many cases, telework is an effective accommodation some of the time. If an employee has a job that requires some contact with customers onsite, but other essential functions can be done at home, granting a few hours of telework per week is a reasonable accommodation. See Petzer v. Department of Defense, EEOC Appeal No. 01A50812 (2006) (sixteen hours of telework per week was an appropriate accommodation because the employee needed the remainder of the workweek to access databases that were only available at the agency); Skarica v. DHS, EEOC Appeal No. 0120073399 (2010) (telework for two hours per day was an effective accommodation because it permitted the employee to use his own private restroom to self-administer a catheter for his medical condition).
  2. Telework as reasonable accommodation falls outside general agency telework policies. Telework as reasonable accommodation, in essence, trumps your agency’s general telework policy. For example, if your telework policy says employees are only eligible for telework after they complete a probationary period, but you have a probationary employee who requests telework as disability accommodation, you can’t just say no because he’s a probationer and the policy prohibits him from telework; you have to consider whether telework is an effective accommodation. If there is no other accommodation available, and telework will allow him to perform the essential functions of his job, then you must grant him telework as an accommodation. EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation. See also Dahlman v. CPSC, EEOC Appeal No. 0120073190 (2010) (agency permitted an exception to its telework policy and allowed a new employee to telework one day per week if, after 30 days, she demonstrated her ability to work independently).
  3. The agency’s obligation is to accommodate the qualified employee and nobody else. Only qualified individuals with disabilities are entitled to reasonable accommodation. An agency does not have an obligation to accommodate a non-disabled employee who requests telework so she can better take care of a family member who has a disability. See Key-Scott v. USUS, EEOC Appeal No. 0120100193 (2012) (Agency did not violate the law when it denied an employee’s request for telework so she could take better care of her disabled son).

Note: please keep in mind that if no other accommodation except telework is effective, a conservative approach that will check the “good faith” box might be to grant the employee a 30-day Telework Trial to see if the employee is capable of successful performance while working from home. With the recent decisions coming out of the EEOC, you just might want to show that you did this before you use that Telework Denied stamp.

There’s lots more on this topic (including what your obligations are in accommodating a disabled employee’s commute) next week during the 90-minute webinar Telework and Leave as Reasonable Accommodation, so if you’re interested please sign up. Hopkins@FELTG.com